Democracy in America | Pregnancy discrimination

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Must employers make accommodations for pregnant employees?

By S.M. | NEW YORK

ACTIVISTS on warring sides of the abortion debate rarely take the same position when it comes to Supreme Court cases involving women’s rights. But pro-choicers and pro-lifers have found common cause in Young v United Parcel Service, a pregnancy discrimination case the justices will take up on December 3rd. Yet the ideological overlap, while intriguing, is no guarantee that justices will reach consensus.

Peggy Young was working part-time as the driver of a delivery truck for UPS when she became pregnant in 2006. Ms Young’s midwife, frowning on the requirement in her job description that she haul 70lb boxes, wrote a note to UPS recommending that “she not lift more than 20 pounds." On this basis, Ms Young requested a few months of a lightened load. Other UPS employees were eligible for such an accommodation, she reasoned, so she wasn’t asking for anything out of the ordinary. Workers who were injured on the job, who were disabled under the terms of the Americans With Disabilities Act, or who lost their driving credentials were all eligible (under the collective-bargaining agreement) for “light duty” assignments. But Carolyn Martin, the company’s occupational health manager, rejected Ms Young’s request. Since pregnancy did not fall into any of the three categories of workers eligible for alternate assignments, UPS would not switch her to a less physically onerous job. Ms Martin "empathise[d] with [Ms Young's] situation and would have loved to help her," but sent her packing on an unpaid leave.

The case concentrates on whether the Pregnancy Discrimination Act (PDA), a law passed in 1978 that fortified employment protections for pregnant women under Title VII of the Civil Rights Act, requires companies to accommodate women like Ms Young. The PDA prohibits employers from discriminating “because of” pregnancy and holds that pregnant women must not be treated differently from other employees who are “similar in their ability, or inability, to work.” UPS defends its accommodation policy as “pregnancy neutral.” It excludes women carrying a fetus just as surely as it excludes employees injured off-site or requesting a new assignment for some other reason. No “animus” toward pregnant women, UPS contends, motivates the policy.

But Ms Young and her defenders find animus in the the omission and argue that the PDA requires more than neutrality. It mandates that employers offer benefits to pregnant women if those benefits are available to employees “similar in their ability or inability to work.” Since, as the amici note, “the vast majority of working women will become pregnant at least once during their careers” and “62 percent of women with a birth in the previous twelve months were in the labor force,” the Court’s decision could directly affect the lives of millions of American women.

For the liberal women’s rights organisations, the question is one of gender equality. Workers like Ms Young, they say, have a legal right to the same kinds of accommodations that companies offer to employees unaffected by a pregnancy. For pro-life groups, there is an added dimension: women facing inflexible bosses tend to consider abortion. The amicus brief from 23 pro-life organisations quotes Senator Harrison Williams, an architect of the PDA who died in 2001. “One of our basic purposes in introducing this bill,” he had said, “is to prevent the tragedy of needless, and unwanted abortions forced upon a woman because she cannot afford to leave her job without pay to carry out the full term of her pregnancy.”

Strange bedfellows, to be sure, but the panoply of organisations leaping to Ms Young’s cause might be disappointed when the Supreme Court issues its ruling next spring. Alysson Duncan, the Fourth Circuit court judge who wrote the decision up for review, is no member of an old-boys club. She is an African American woman appointed by President George W Bush and confirmed unanimously by the Senate in 2003. Finding neither evidence of discriminatory intent on the part of UPS nor cause to read the PDA expansively, Judge Duncan has merely offered Ms Young a hesitant statement of double-negative-diluted sympathy:

While not unsympathetic to Young's circumstances, we are nevertheless concerned about the problematic potential of creating rights not grounded in the text and structure of Title VII as a whole.

In reaching this conclusion, Judge Duncan refused to apply Ensley-Gaines v Runyon,a ruling from 1996 in which the Sixth Circuit interpreted the PDA as a significant advance in mandated workplace accommodations. In Judge Duncan's view, such a reading of the PDA treats pregnancy “more favourably than any other basis” for a work reassignment request and untenably creates special rights for expectant moms.

To support her much more cramped reading of the PDA, Judge Duncan turns to Troupe v MayDept. Stores Co, a Seventh Circuit ruling from 1994. But Troupe concerns the pregnancy discrimination claim of an expectant mother who was fired for perpetually coming to work late. The question there was whether Ms Troupe was discriminated against or terminated for cause. In his decision in Troupe, Judge Richard Posner resisted "the urgings of feminist scholars" to read the PDA as "making it easier for pregnant women to work" no matter how derelict they may be. But he also implicitly affirmed the basic holding in Ensley-Gaines in his quip that "[e]mployers can treat pregnant women as badly as they treat similarly affected nonpregnant employees." The important implication is lost on Judge Duncan: employers cannot treat pregnant women any worse than they treat similarly affected nonpregnant employees. Put differently, nothing in the law requires UPS to accommodate workers who are unable to continue in their current assignment. But if it chooses to accommodate some workers, it cannot exclude similarly affected pregnant employees.

When the Court hears arguments in Young v UPS this December, the four-justice conservative wing may well be receptive to Judge Duncan’s logic, problematic as it is, while the four liberal justices will likely show more sympathy for Ms Young. The biggest question mark is Justice Anthony Kennedy, a jurist who has a soft spot for gays and lesbians but has often been stingy when it comes to claims of gender equality for women.

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